AN EMPLOYER'S BEST DEFENSE AGAINST LAWSUITS IS A WRITTEN EMPLOYEE HANDBOOK.

• Risks of not having a documented Employee Handbook
• Myths that prevent employers from creating a Handbook
• Why these myths are just plain wrong

RECENT COURT CASE:
INCONSISTENT WRITTEN AND VERBAL COMMUNICATIONS PUT EMPLOYER AT RISK REGARDING INTERNET, EMAIL AND COMPUTER SYSTEM LIABILITY.

• Why an employer lost a court ruling, despite clearly written policies to protect itself
• How employer verbal communications - inconsistent with documented policies - created a liability
• The importance of creating consistent written and verbal policies

ONE THAT HAS BEEN LEGALLY REVIEWED?

Many employers never create the documented policies that are their best line of defense against employee lawsuits. Why? Simply because they wrongly accept some common myths. Employers should know that the risks of not having a legally reviewed Employee Handbook are so significant; they should instead wonder how they could ever believe the myths in the first place.

RISKS: Increasingly more employees in the process of or just considering suing their employers are demanding copies of their personnel files*. Demands come from both current and former employees. Your legal obligation to reply depends 100% on state law. Regardless of your state, it's critical to be prepared for the already documented upsurge in employee requests.

• Employee lawsuits, needing to defend your employment practices in court
• Mistrust of management, from unmet employee expectations
• Reduced profitability from unmotivated employees
• Lack of structure to improve company policies and practices
• An unsafe and legally non-compliant work environment
• No repository for information required to defend against employee claims
• Inconsistent management because of unclear and ill-defined direction

Here are some of the myths about Employee Handbooks that sound so right, but are so wrong.

Myth #1: A written Employee Handbook will cause my company to lose flexibility.
Why this is incorrect: Employee Handbooks actually can preserve and enhance flexibility in specific situations. Drafted in certain ways, Handbooks can enable companies to maintain their discretion for specific or exceptional circumstances.
Without a written document that specifically addresses flexibilities in certain situations, a company could increase its risks of employee claims.

Myth #2: A small company does not need an Employee Handbook.
Why this is incorrect: No company, regardless of its size, is immune to liability. For example, New Jersey law states that an employer with a single employee must comply with anti- discrimination laws. Therefore, it is prudent for even the smallest of companies to create written, legally reviewed policies as part of their Handbook.

Myth #3: No one looks at the Employee Handbook, anyway.
Why this is incorrect: Statistics show that Employee Handbooks are valued by employees and engender greater trust between employees and the company. Employee Handbooks can motivate employees, boost productivity and improve relations with the employer. All of this is so important in today's competitive environment.

Myth #4: Having written documents will increase the employer's exposure to liability.
Why this is incorrect: A properly drafted Employee Handbook can actually protect a company. More importantly the Handbook can help the company position against claims of harassment in certain cases.

Employment claims often arise because employees perceive preferential treatment - real or otherwise. An Employee Handbook providing clear guidelines to management and employees alike can help minimize unfair practices and increase employees' opinion of employers' fairness.

It is never too late to create or update your Employee Handbook, no matter what the size or age of your company. Written and legally reviewed documentation can significantly minimize liability and other risks and become your best protection.

HOW ONE EMPLOYER TRIED BUT FAILED TO PROTECT ITSELF FROM A LAWSUIT INVOLVING EMPLOYEE INTERNET AND EMAIL ACTIVITY

WHAT HAPPENS WHEN A COMPANY'S WRITTEN POLICIES ARE INCONSISTENT WITH VERBAL COMMUNICATIONS?

In the last issue of the "Employment Law Report", readers were reminded that a well drafted and well- communicated policy is a must when it comes to employees' use of the company's Internet, email and other computer systems.

HOW THE EMPLOYER TRIED TO PROTECT ITSELF

The employer had provided two-way pagers to the employees and permitted them to use up to 25,000 characters and informed the employees they would be responsible for any overage fees. Pertinent for our purposes, the employer had a written computer usage, Internet and email policy. In this policy, the employer advised employees that there should be no expectation of privacy and the employer may monitor the systems, which included the two-way pager.

COURT'S RULING

The Ninth Circuit Court of Appeals agreed there was an invasion of employee privacy when an employer audited the text messages on the pagers provided by the employer to the employees. (Quon v. Arch Wireless Operating, Inc., No. 07-55282 (9th Cir. June 18, 2008)

SO, WHY DID THE COURT RULE AGAINST THE EMPLOYER?

In this instance, the manager responsible for the pagers verbally communicated to the employees that the employer would not audit the pager messages as long as employees paid for any overage fees. Because the manager's assurances contradicted the company's written policy, the court found the employees in fact had a reasonable expectation of privacy in the messages on their two-way pagers.

This case is a classic example of why:
1) A well-drafted and well-communicated policy is critical, and
2) A company's verbal communication must be consistent with their written Employee Handbook policies.